The Case Against Holds on Political Nominees

In the summer of 2001, when I was an intern in the office of New York Sen. Chuck Schumer, I got an interesting window into congressional procedure when Schumer decided to place a hold on a Bush administration nominee, Donald Schregardus, who had been tapped to be the lead enforcement officer at the Environmental Protection Agency. The problem was, nobody was quite sure how to place a hold on a nominee. Schumer was relatively new to the Senate (he was first elected in 1998), and during the Clinton administration it was usually Republicans who were preventing a nomination from coming to the floor for a vote. Ultimately, as I recall, staffers told The New York Times that the nomination was being held, and that proved to be good enough; Schregardus would eventually withdraw from consideration. The hold was undertaken for what I considered a good cause, but the circumstances underscore how the process is archaic, undemocratic, and essentially destructive.

There is no real hold rule. When a senator places a hold on some piece of business it's a signal that unless the majority leader respects the wish to keep the item bottled up, the senator will start objecting to the unanimous consent motions by which the Senate conducts its routine business. That would make it difficult to proceed on any issue before the Senate, so the leader customarily gives way. Because breaking a hold is possible, albeit time-consuming, senators rarely attempt it on major legislation. But on second-tier nominees and issues holds can last indefinitely.

The hold originates from the Senate's self-conception as something more like a tony gentleman's club than a parliamentary body. Holds stick in part because there's a tradition of letting them stick. But what began as a question of courtesy and decorum has evolved into a hardball tactic. Schumer, after all, didn't want more time to think Schregardus over, he wanted a loosely related policy concession—a Bush administration agreement to proceed with EPA litigation against Midwestern power plants whose emissions were reducing air quality in the Northeast.

Now that Barack Obama is in office, holds are running at a ridiculous rate. During George W. Bush's first 17 months in office 100 judicial nominees were confirmed, versus nine in Obama's first nine months, in part because of an inordinate number of single-senator holds on his nominees.

Consider the case of Tom Shannon, whose appointment to be ambassador to Brazil should be uncontroversial. He's a career foreign-service officer sufficiently well-regarded by Republicans that George W. Bush made him assistant secretary of state for the Western Hemisphere. For months, however, a vote on Shannon's nomination was held up because Iowa Republican Sen. Chuck Grassley didn't like the fact that Shannon once said we should drop our tariffs on Brazilian sugar ethanol. The tariff, though economically and environmentally pointless, is good for Iowa corn growers.

Recently, Grassley relented, but Sen. George LeMieux launched a new hold for no clear reason at all. If you've never heard of LeMieux, you're not alone. He's a newly minted senator recently appointed by Gov. Charlie Crist to fill a vacancy left by Mel Martinez's retirement—lucky for them the Florida state Constitution doesn't allow for holds on potential senators.

Indeed, holds increasingly are being tossed around with only nominal justification. Wyoming Sen. Mike Enzi's hold on Patricia Smith's nomination to serve as solicitor in the Department of Labor is based on allegations of minor inconsistencies in her testimony—for example equivocating as to whether the innovative "wage watch" program she initiated in New York was her idea, or something originally conveyed to her by a subordinate. All told three dozen nominees who've been approved by their relevant committees are being held up. And it's not just nominees; Oklahoma's Sen. Tom Coburn is blocking action on a veterans' benefits bill that would otherwise have the votes to pass.

There is a forum in which these policy disputes are supposed to be resolved—the ballot box. After an election, the country needs a well-staffed executive branch. Putting the squeeze on an administration by holding up its appointees is a way of holding the interests of the whole country hostage to a petty agenda. When Regina Benjamin's nomination to be surgeon general was held up through the end of October it wasn't primarily Obama or Benjamin herself who suffered, it was the government's ability to inform people about how to deal with the swine-flu epidemic.

If the rules allowing these holds didn't exist, nobody would be crazy enough to suggest implementing them. So they ought to be done away with. Senators of both parties like the power it gives them, but it's power that's acquired not so much at the expense of the president as at the expense of effective government and common sense. The days when norms of courtesy could be counted on to prevent holding from getting out of control. Appointees confirmed by the relevant committee should be voted on by the full Senate.